Opinion,
Mr. Justice Paxson :This was an action on the case for a malicious prosecution, and has about it the unmistakable flavor of antiquity. It was twice tried in the district court by our late and lamented colleague Chief Justice Shabswood, then the president judge of that court. After the adoption of the present constitution, the cause was certified to the Common Pleas No. 3, where it was tried before the late Judge Yerkes. The first trial resulted in a verdict for the plaintiff, which was set aside and a new trial granted. At the second trial there was a disagreement of the jury. The third resulted in a verdict for the plaintiff and a judgment upon the verdict. It is to this judgment this writ of error was taken.
The first assignment alleges that the court erred in overruling the defendant’s objection to the plaintiff’s offer to show the condition of the prison cell and all that occurred there, and his surroundings there.
The plaintiff was arrested upon a charge of obtaining certain merchandise from the defendant’s firm by means of false pretences. At the hearing before the alderman he was committed to the county prison in default of bail, where he was confined for twenty-seven days, when he was brought up on a writ of habeas corpus before Judge Brewster and discharged. Upon the trial below the plaintiff was allowed to testify, against the objection of the defendant, as to his treatment wliile there. He said: “When I went to prison I received two very narrow blankets and tin dishes — no knife or fork; I slept on the floor; I was there twenty-seven days...... Got nothing to eat from time I left boarding-house till next morning — room was filthy. Stool with no cover to it; the men made water in it at night and it ran over.” The witness had previously said that he had been sent down in the van with two other prisoners, “ one drunk and spewing.”
This testimony could hardly fail to inflame the minds of the jury and enhance the damages. And if the treatment referred to had been the act of the defendant he would have no reason to complain of the admission of the evidence. But it is a mat*486ter with which he had nothing to do. He is not responsible for the way in which the county of Philadelphia, acting through its officials, treats persons confined in the county prison. He is responsible for the unlawful restraint of the plaintiff’s liberty, if he has so restrained it, but it would be unreasonable, as well as unjust, to hold him liable for the acts or conduct of public officials over whom he had no control. We are of opinion that it was error to admit this testimony.
The second and ninth assignments of error may be considered together. The first alleges error in admitting in evidence the record of the Quarter Sessions upon the habeas corpus proceeding. The second was to the refusal to affirm the defendant’s last point. The point was as follows: “ A discharge of the plaintiff upon a writ of habeas corpus, after hearing thereon in the Court of Quarter Sessions, is not such a final determination of the prosecution against him as will entitle him to maintain his present action, and the verdict of the jury must be for the defendant.”
The question raised by this point has never yet been decided by this court, to my knowledge. Under such circumstances, it would seem natural to suppose that counsel presenting it would give us the benefit of their aid and research in disposing of it; on the contrary, it is thrown in upon us, not only without an authority pro or con, but without an argument. Yet we are asked to decide it. We might perhaps, decline to do so, but as the question lies directly in the path of another trial, we will consider and dispose of it.
The eleventh section of the habeas corpus act of February 18, 1785, 2 Sm. L. 275, provides as follows : “ And for preventing unjust vexation by reiterated commitments for the same offence, Be it enacted, That no person who shall be delivered or set at large upon a habeas corpus shall, at any time thereafter, be again imprisoned or committed for the same offence, by any person or persons whatsoever, other than by the legal order and process of such court wherein he or she shall be bound by recognizance to appear, or other court having jurisdiction of the cause; and if any other person or persons shall knowingly, contrary to tins act, recommit or imprison, or knowingly procure or cause to be recommitted or imprisoned, for the same offence or supposed offence, any person delivered *487or set at large as aforesaid, or be knowingly aiding or assisting therein, then he or they shall forfeit to the prisoner or party grieved, any pretence of variation in the warrants of commitment notwithstanding, the sum of five hundred pounds, to be recovered by the prisoner or party grieved in manner aforesaid.”
It will be seen that the act prohibits, under a heavy penalty, the re-arrest or imprisonment for the same offence of a person discharged upon habeas corpus, except by “ the legal order and process of such court wherein he or she shall be bound by recognizance to appear, or other court having jurisdiction of the cause.” A discharge upon habeas corpus is not necessarily, and in all cases, the end of the prosecution. The public prosecutor, for public reasons, and with leave of the proper ■court, may send a bill to the grand jury, even in a case where the prisoner has been discharged upon habeas corpus. This view of the act was evidently taken by the late Judge King, of Philadelphia, in the ease of Commonwealth v. Ridgway, 2 Ash. 247, where he said, in discharging the relator: “ I rejoice, however, that our judgment is not conclusive of the subject. The sole effect of this decision is, that, in the present state of the evidence, we see no sufficient cause to hold the defendant to bail. It is still competent for the proper public officer, particularly in a different state of the evidence, to submit the case to the grand jury. That respectable body are entirely independent of us; they can form their own views of the prosecutor’s case, and may, if their judgment so indicates, place the •defendant on his trial; we at present do not see adequate ■cause to induce us either to restrain him of his liberty, or compel him to give bail to answer. He is discharged.” It will be noticed that there is no indication from Judge King that a private prosecutor could procure the recommitment of a person so discharged. It must be done by the public prosecutor and manifestly for a public purpose.
The nearest approach to an authority in this state is the ruling of the late Justice Bell at nisi prius, in Charles v. Abell, Brightly 131, where he held that a discharge on habeas corpus puts an end to a criminal prosecution, so as to enable the defendant therein to maintain an action for malicious prosecution. It was said by that learned judge: “ It must be acknowl*488edged that the law on this subject has undergone many alterations in modern times. It seems to be now agreed, that if a grand jury ignore the bill, it is sufficient to maintain the action. But this rule has been still further modified, and it is settled that if a party is brought before an examining magistrate and discharged, though the proceeding might be again renewed, still, in point of law, that prosecution is ended, and the party may maintain the action for malicious prosecution. There is a precedent for a declaration in Chitty’s Pleadings, in an action brought under such circumstances. There is no difference in point of principle and practice between a discharge by a committing magistrate and a discharge by a judge who examines the case upon habeas corpus. It as effectually puts an end to the prosecution as if the defendant were discharged by a magistrate, although a new charge may be after-wards made.” The practice of commencing suits for a malicious prosecution, after a hearing and discharge by a committing magistrate, appears to have passed unchallenged in this state. There are many such cases in our reports. It is sufficient to refer to Orr v. Seiler, 1 Penny. 445; Bernar v. Dunlap, 94 Pa. 329. It would be unreasonable to give greater effect to the discharge of a prisoner by a committing magistrate, who is ordinarily a layman, than to a discharge upon habeas corpus by a judge- of a court of record.
The offence with which the plaintiff was charged was a mere misdemeanor. It lacks every element of public importance. Such prosecutions are seldom resorted to, except to collect a debt, and one can hardly imagine an instance in which a public prosecutor would ever interfere in such a case where the offender had been discharged upon habeas corpus. And as the private prosecutor may not re-arrest the party, such discharge,- for all practical purposes, is an end of the case. If, therefore, a suit for malicious prosecution may not be brought after a discharge upon .habeas corpus, it can never b.e brought, no matter how gross may have been the abuse of legal process. Speaking for .myself, I would do nothing to impair the right to bring such actions. The fear of the rebound has saved many an unfortunate debtor from unjust prosecution. We are of opinion that the learned judge below committed no error in refusing the defendant’s point. It follows that it was not. *489error to permit the record of the habeas corpus to go to the jury. It was the proper and legal way of showing the plaintiff’s discharge.
The third assignment is not sustained. The matter referred to was irrelevant, and was brought out upon the cross-examination of plaintiff by defendant’s counsel; as it had nothing to do with the case he was bound by the answer, and was not entitled to call a witness to contradict it. Whatever Mr. Ruddiman may have said on the occasion referred to, his client was not responsible for it.
I am unable to see why the question asked the witness, McFarland (see fourth assignment), should not have been allowed, though the matter is by no means clearly stated. McFarland was examined as a witness for the plaintiff. He was subsequently called by the defendant and was asked whether he had not testified in a particular way upon some prior occasion. The object was to show that the witness told a different story upon another occasion. While not important, I think the -witness should have been allowed to answer the question.
We see no error in the fifth assignment. Mr. Rhoads was allowed to testify to the advice he gave his client as to his legal rights. His advice in regard to the duty of his client, as a merchant, to prosecute, was not competent evidence.
The sixth assignment is not sustained. It was immaterial at whose instance the plaintiff was brought up from prison the second time. Nor do I find any evidence to warrant the assertion that the plaintiff had testified that he was brought up at the instance of the defendant.
We think it was error to overrule the offer by defendant’s counsel of the deposition of William McFarland, taken by defendant. The witness was examined by both sides, and his testimony showed at least that he did not always tell the same story. The deposition was offered to show this, and, under the circumstances, ought to have gone to the jury.
The deposition of John M. Cummings, a deceased witness, who had been examined at a former trial, was offered in evidence in accordance -with some agreement of counsel or order of court. The court excluded a portion of the deposition, which is the subject of the eighth assignment. The only *490ground claimed for the exclusion of the omitted portion is that it was immaterial. This, if true, would be sufficient. But the deposition tends at least to show that the plaintiff was passing himself off for William Storey. This is not very important, but it was competent, and we think should have been admitted.
The judgment is reversed and a venire facias de novo awarded.